The Court reinforces the necessity of clear documentation for establishing heirship in legal proceedings and underscores the high standard of judicial restraint exercised under Article 227.

JUDGMENT :

1. Rule returnable forthwith. Learned advocate Mr. Rituraj M. Meena waives service of notice of Rule for the respondent No.1. Though served, none appeared for respondents No.2.1 to 2.3 and 3.

2. With the consent of the learned advocates for the respective parties, this matter was taken up for final hearing.

3. Heard learned advocate Mr. Anand B. Gogia for the petitioners and learned advocate Mr. Rituraj Meena for respondent No.1. Perused the record.

4. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 02.08.2021 passed by the learned City Civil Court, Ahmedabad in Civil Application No.4585 of 1991 below Exhibit 83 and 84. The petitioners before this Court are the heirs of the plaintiff No.1. Learned advocate for the petitioners submitted that parties to the suit i.e. plaintiffs and defendant No.2 are relatives inter se.

4.1 Learned advocate for the petitioners submitted that the petitioners are the heirs of original plaintiff No.1, and petitioners filed an application under Order 1 Rule 10 of the Code of Civil Procedure to implead them in the suit. The original suit No.4585 of 1991 came to be dismissed for default by the learned Trial Court on 26.02.2003, thereafter the suit came to be restored on 31.08.2019. The heirs of the deceased plaintiff No.1 moved an application Exhibit 83 on 15.02.2020. Vide Exhibit 84, an application under Order 22 Rule 3 came to be preferred by the present petitioners. By common order below Exhibit 83 and 84, the learned Trial Court dismissed the applications on 02.08.2021. Learned advocate for the petitioners has placed reliance on the decision of Patel Ramjibhai Bhagvanbhai Khusalbhai Vs. Jethabhai Joitaram Patel deceased Throlegal Heirs; 2016(0) AIJEL-HC 240634. Learned advocate for the petitioners has submitted that petitioners are necessary and proper party in the suit. It is further submitted that the proposed heirs were not aware about the proceedings pending before the Court.

5. The learned Trial Court has observed in the order impugned that the suit against the defendant No.2 came to be abated on 13.02.2003. It is worthwhile to note here that plaintiff No.2 also preferred application to bring the heirs of the plaintiff No.1 and the defendant No.2 in the said suit. However, the applications came to be dismissed by the learned Trial Court and the order is challenged in Special Civil Application No.7978 of 2022.

6. The learned Trial Court has rightly observed that the present petitioners claimed to be the heirs of Kalavati Chandiram Bajaj. But neither death certificate is produced nor date of death is mentioned in the application. Upon the notice issued by learned Trial Court Exhibit 72, it has come on record of learned Trial Court that plaintiff has expired before 10 years. As the plaintiffs and the defendant No.2 were relatives, it is therefore, not believable that the petitioners were not aware about the pending proceedings and no knowledge of death of defendant No.2 on 27.12.2001.

7. The decision of Patel Ramjibhai Bhagvanbhai Khusalbhai (supra) has been placed reliance by the learned advocate for the petitioners. In the said decision, the Co-ordinate Bench of this Court has observed that what is to be considered is the justification given for condonation of delay is to be considered and not a length of delay. In the present case on hand, for a moment, if the length of delay is not taken into account then the justification which are canvassed by the petitioners creates doubt for;

(i) The parties are relatives, hence it leaves no room for the petitioners to plead igno